Of course the Internet Archive’s digital lending broke the law, appeals court says The US Second Circuit Court of Appeals on Wednesday affirmed a lower court ruling that the Internet Archive's digitization and electronic distribution of copyrighted print books violates American law. The Internet Archive was sued in 2020 by four large publishers – Hachette Book Group, HarperCollins Publishers, John Wiley & …
But OpenAI are in court being sued for copyright infringement and just like Internet Archive did when sued, they claim their purpose of use is transformative* and therefore it's Fair Use. So where is the "Contradiction in terminis"?
*Internet Archive were also arguing the Purpose and character of the use was nonprofit.
It's irrelevant if it's for profit or not, the important distinction is between *archiving* and *lending*. Copyright laws have plenty of allowances for archiving - a fundamental part of preserving the knowledge of civilisation. But what they are doing here is more than archiving, they are lending. In the UK they would be required to pay into the lending library royalties fund.
Copyright should have never been applied to non commercial activity in the first place.
There's one thing to be bound by commercial interests By competing commercially, but Real life outside the commercial compromise Ought to be less restricted in respect to its greater importance as the larger frame.
Those outside the arena of profit seeking for Ought not to be limited by interest for commercial profit.
getting accused of cheating in a game you never were a part of to be bound by.
< "Copyright should have never been applied to non commercial activity in the first place."
But their activity did, at least in theory, affect commerce. Some percentage of the people who downloaded the books for free would have otherwise paid for them. I remember when I was a poor student, I would regularly rent VHS copies of films as entertainment for $3 or so. Then one day, I discovered that the public library had VHS tapes of popular films available for checkout. My rental spending dropped by at least 75% at that point. The library wasn't making any money, but my regular corner video rental place was definitely missing out on revenue that they would have otherwise had. This issue is not as simple as you imply.
You're putting commerce ahead of larger life outside commerce.
If They wanna play that game That's fine but they shouldn't be allowed to limit those who aren't. Or nothing will ever graduate the commercial gauntlet to be enshrined in the public domain for good all of humanity and aid in reducing dependency on commercial activity.
If commercial activity steals the whole world instead if being used to recycle greed into engines to serve all, Might as well shut down the whole mudddy mess and be just as miserable as a species without all the fuss and restrictions.
There are definitely worthwhile discussions to be had about copyright law, especially about the duration of the protections it provides. Some of those discussions are occurring in this very comment section. Here we are talking about books which are still in print and available for sale. The authors in most cases wrote them with the expectation that they would provide income, not just for fun or "for good of all humanity". If the authors wanted to give the works away for free, there are ways they could do so. (Assuming they haven't already entered into a commercial agreement with a publisher for the works in question.) There are also established rules for how libraries loan out copyright protected books, both physical and digital. The Internet Archive was not following these rules, plain and simple.
Do you have a job that provides income and puts food on your table? Assuming you do, I would wager that there is some way it could be argued that the work you do can benefit all of humanity. Should you then be forced to do that work for anyone who asks without any financial reward?
What you are advocating for is by definition piracy. Different people have different opinions on piracy, whether it is ever justified, and if so in what situations. As far as I can tell, your opinion can be boiled down to "Capitalism is bad and everything should be free". Good luck with that.
I value people over tools.
Tools are there take the wear and tear to relieve people.
I don't think capitalism is bad, I just don't think it should be elevated to God-like status of importance. It should be allowed to fail when it gets in the way of the greater good.
It gets unfair protection as a methodology that places it as more important then the people who are restricted to allow it to operate.
Like a language shifted version of object worship.
The modern equivalent of "the golden calf"
Tools are supposed to be interchangeable as fits situation.
Stop worshipping the tools. There are much more efficient solutions more appropriate to task that are being sabotaged by Forcing everything to restrictive capitalism.
A more dynamic approach is more useful.
Any process grown out of range becomes malignant.
I just want to trim capitalislm back to A healthy secondary concern to keep it symbiotic Onto those who are forced suffer artificial restriction and loss of option to help Themselves and others directly to prop up capitalism.
Capitalism works great to spur innovation in an absence of a concept of IP.
Capitalism plus IP creates the malignancy.
It makes it almost impossible to honorably boycott and roll your own solutions to help your community.
It discourages fellowship and compassion in the general population. It Encourages sustainment of problems to prevent solution. Like treating a wound while keeping it open and restricting the closing of the wound from other efforts to maintain treatment..
Out of curiosity, is English not your first language? I ask partly because of the odd use of capitalization in your writing, and partly because most of your sentences don't make any sense, and therefore I really have no clue what your argument actually is.
< "Stop worshipping the tools..." - What tool are we talking about in this particular situation? I honestly have no idea.
I notice you ignored my question about how you would feel being forced to do your work for no pay. What is your solution for authors who wish to make a living by writing books, if those books can then be legally downloaded for free by anyone, anywhere?
Regarding the odd capitalization, speech to text and fat fingers on a touch screen during leisure time internet discussion are just nit Important enough of a pursuit to spend all the time proofreading and adjusting to that fine degree.
I'm fine With Individuals negotiating on one time payment fir one piece of work.
But I'm not comfortable with is one person restricting everyone else once it has escape privacy into the larger world.
Methodologies and concepts of economics are tools.
Legal concept give weight by threat of force are tools.
People helping directly absent the inefficiencies of monetizing should be enshrined rather then curtailed.
Getting paid is only a means to an end. The more ends that can be achieved through more direct means and motivations the more Independent people become.
If we are ever going to redeem all this technology to Make people more self sufficient and no longer have to go to last resort of commerce with all the social drawbacks of Capitalistic commerce Modeled after war-games brings, attacking developments like this is sabotage.
< "I'm fine With Individuals negotiating on one time payment fir one piece of work."
OK, but that business model DOES NOT WORK in the context of authors writing books for income.
< "But I'm not comfortable with is one person restricting everyone else once it has escape privacy into the larger world."
< "People helping directly absent the inefficiencies of monetizing should be enshrined rather then curtailed."
These are great examples of why I questioned whether English is a language you are proficient in. If there are coherent thoughts behind these sentences, you have absolutely failed to communicate them.
I was pointing out that like Internet Archive, OpenAI were claiming Fair Use* (transformative). I noted that Internet Archive also argued use was nonprofit in their Fair Use claim.
From Internet Archives Appeal filing https://torrentfreak.com/images/ia-appeal.pdf
"I. INTERNET ARCHIVE’S OPEN LIBRARIES PROJECT IS FAIR USE ............................................................................................................. 18
A. The First Factor Favors Fair Use Because Internet Archive’s Lending Is Noncommercial, Transformative, And Justified By Copyright’s Purposes"
When it comes to Fair Use, nonprofit is not irrelevant. The Internet Archive's legal team for the appeal certainly thought it was relevant. From their Appeal filing.
"1. Internet Archive’s free digital library is noncommercial
a. Internet Archive’s free lending makes no profit and benefits the public
“[T]here is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use.” Google, 141 S. Ct. at 1204."
There is no denying Internet Archive were lending digitized copies. Their defense accepts they were, claiming it's Fair Use. The first factor (the purpose and character of the use) to consider in deciding Fair Use, nonprofit would be a positive to passing that bar.
*We don't have Fair Use in UK copyright law.
I guess the only thing that they can do now is hold ebooks that are completely out of copyright such as the Project Gutenberg ones.
Quite a few countries have a more liberal life + 50 years limit and if the Internet Archive wanted to hold ebooks that are hosted in one of those jurisdictions. That said, there are some sites that still seem to be a copyright free for all (Hi, Scribd).
There are cases about that, but they will take a while to get to court. Even this one took a couple years to get its first case and we're about four years on when the appeals ruling came in. AI companies also have a lot more to spend on lawyers to delay the process. I think that, if they're enforcing the law correctly, they will have to rule against the AI companies on the same basis that they ruled against the Internet Archive, and I hope that they do.
I think the IA's case was quite a bit stronger than AI companies', but that doesn't mean I think the Archive was destined to win this. The problem is that CDL was never clearly legal, that if it is fair use was probably the wrong way to justify it, and that the Internet Archive wasn't making their case easier. I think a rigorous application of CDL should be legalized, but the IA did not help make that case when they used weak DRM making it relatively easy to make more copies and when they decided to lend unlimited copies in 2020. That latter decision was disappointing to me because, when I read that they were doing it, I was almost certain that it would harm them in a trial and it was likely the reason why this one started in the first place. Had they stuck to CDL, publishers might have avoided a trial they might lose because losing it would justify more unrestricted lending terms for ebooks than the systems publishers currently use with libraries, but when the Archive tried to go unlimited, they gave publishers a big incentive to try to smack them down and some valuable ammunition to do it with. I'm sad, but not surprised, to see how it has gone.
We give these publishers far too much power with our current copyright laws. Same with the music and movie industries, copyrights need to be scaled back drastically. Scanning these books and releasing the digital copies 1 to 1 with the number of physical books in their possession should not be illegal at all. It's not different than a library buying a book to lend it out, they just lent it digitally instead.
Authors are paid when library books are borrowed in the UK.
They do, but to put some flesh on that, it's up to a maximum of £6,600/yr. Sir PTerry didn't get rich from lending royalties (nor would have wanted to, as a staunch defender of libraries).
Average royalties for published authors are 10-20%, so maybe £1-1.50 per book (given even paperbacks cost nearly £10 these days). PLR is 13.69p per loan (so you need 48,200 loans to hit the cap). Assuming you're below the cap, you'd need to make ~8-10 loans to earn the equivalent of a single sale. Given most library books only last a dozen or so lendings1, the author will make as much from sales royalties as the lending. If someone is being lent heavily, then the books will get knackered and they'll be earning sales royalties from libraries buying replacements even after they've hit the cap.
Realistically, if an author is popular enough to hit the cap on lending royalties, they've made high 5-figures from advance & sales royalties, if not 6-figures. If they're not selling that many books, they're likely not lending that strongly either. The Public Lending Right (PLR) Scheme is important and valid, but does not represent the difference between being a part-time or full-time author. Outside of certain reference niches where very few people buy your books but lots of libraries hold them2, it's pocket money on book sales.
1. Some last dozens of lendings, some get trashed on their first loan - either through abuse by the borrower, or because they fall apart from defective binding. If borrowers store books open face-down between sittings (instead of using a bookmark) then the binding will crack very quickly in just a couple of loans.
2. But of course if your work tends to be reference-only, then it will never be loaned.
We give them privileges, but what we don't give them are concomitant obligations and duties such as an obligation to supply.
>It's not different than a library buying a book to lend it out, they just lent it digitally instead.
It is quantitatively different: Far more people can use one paid for book from a global, non-member library, than if they have to physically go to where it is stocked, e.g at a local taxpayer-only municipal library. The utilisation can be 100% vs quite low for actual libraries.
And that is before the user just copies the pdf,
You're over-simplifying the utilisation aspect here though - remember that the IA only allowed one person to borrow a digital copy at a time, so for particularly popular books this would either mean a significant waiting list to allow everyone to access that one copy one after the other, OR it would require the IA to have bought up multiple physical copies in order to then lend out to multiple people at the same time.
And yes, the utilisation could be higher per digital copy than for physical copies in libraries, but that's not a given, nor should that be reason to prevent what the IA were doing - libraries are supposed to facilitate access to books, not inhibit it, so maximising utilisation of each available copy is exactly what they ought to be aiming for. Otherwise, would you be happy if you walked into your local library, failed to find the book you were after, went to the librarian to ask for help, and were told "yeah, sorry, that one got borrowed too many times, we aren't allowed to lend it out any more"?
Also, I'd hope that the IA weren't simply dishing out unprotected PDFs and relying on the honour of the user not to make a copy before "handing it back" so it could be loaned out again - there are licencing mechanisms for PDFs which would prevent someone making use of a local copy of the file if they haven't been granted access to it.
During COVID internet archive stopped enforcing the 1:1 rule. Publishers were afraid to bring a case and get a ruling that 1:1 was legal, but once IA did 1:many, even briefly, the case practically writes itself.
IA should have known this was inevitable, but they misjudged what they could get away with.
Yeah this.
Allowing uncontrolled lending in COVID was done for the best of intentions, but a huge own-goal. I can only assume they thought public pressure and the court of public opinion would shield them from publisher action.
It painted a huge target on their back. Publishers were a bit lairy about whether they could get a favourable ruling on 1:1 CDL given prior rulings on format shifting and how that could be argued/applied to this case, but uncontrolled lending was blatantly and self-evidently unlawful and indicated "bad faith" on the part of IA, which gave publishers the confidence to have a go at both uncontrolled lending and also 1:1, with the case framed in the context of the uncontrolled lending.
It is quantitatively different: Far more people can use one paid for book from a global, non-member library, than if they have to physically go to where it is stocked, e.g at a local taxpayer-only municipal library. The utilisation can be 100% vs quite low for actual libraries.
At the end of the day, it depends whether your jurisdiction allows format shifting. IA thought they could, based on rulings in the Limewire era.
This ruling indicates it doesn't apply in this scenario.
A bigger problem is more that a physical library book will wear out in a dozen lendings or so - but an ebook lasts basically forever, even if you can't get the physical copy out of the storage container without it crumbling to dust. In the last couple of years, publishers have stopped selling perpetual ebook licenses to libraries (except certain academic libraries) for their e-lending schemes and will generally only offer 2-year licenses.
The entire notion of copyright needs a massive overhaul to enter the digital age we are living in.
I don't have a solution. I have no idea what the solution is. I absolutely believe that the creator of an original work should be adequately compensated if said work garners public attention, but things like Disney should no longer happen. A work is created by a person. When that person dies, so should his/her copyright. If said person worked for a company and produced said work for the company, the person should still be the holder of the copyright, not the company. And rights should only be transferable to living, breathing people, not to a company.
But that is just my opinion . . .
Pascal Monet,
There’s a problem with not allowing an author to sell their copyright. It destroys its value. Sometimes an author needs to eat. Copyright on a work comes in small amounts, as your work is bought or used. So being able to sell on the rights for an upfront payment can be very useful. But if you make it so companies can’t own it, then companies can’t buy it.
Also, how would films or TV get made? Would every animator, cameraman, actor, sound recordist, writer, producer own a bit of the copyright for a film? Or would the director or writer own it all, but then have to pay everyone out of their own pocket?
How could a symphony orchestra work?
And there's a problem with not allowing copyrights to be inherited ("copyright dies with the author") — it's unfair to authors who die during their term of copyright, versus those who die after their copyrights expire. And there are obvious hacks that will be encouraged, such as naming one's children or other potential heirs as co-authors.
It'd also destroy the value of computer-generated specialty works, which have existed for decades and serve a useful function in their limited market.
We've mixed up different but closely-related, sometimes-overlapping concepts here. The first is companies buying "primary" copyright of some extant, original creative work whereby they own everything related to it. It's quite unusual for them to take everything lock, stock and barrel. Another is a company buying some subset of rights - possibly as a license (tv/film rights), and the last is work-for-hire. Which is kind of the same as the first (you're buying the rights over their output, though this generally (not always) involves less novel creative input. Turning up as a session musician and doing a job is not the same as writing/arranging the music or spending weeks agonising over a final mix).
We could argue that a creator should intrinsically retan all rights and ownership over their works without preventing them from selling licenses to third parties, whether time-limited or perpetual. Legal protections would be required to avoid abuse of exclusive/perpetual licenses where someone (Disney) has taken advantge of a naive young author and licensed their lifetime's work for a quid, just as the U.S. Copyright Act of 1967 allows artists to reclaim copyright after a period.
So being able to sell on the rights for an upfront payment can be very useful. But if you make it so companies can’t own it, then companies can’t buy it.
Yes, rights, not the whole copyright in itself. This is not intractable. It's perfectly possible for an author to sell a license (possibly an exclusive licence for their lifetime) to a filmmaker or tv company. JK Rowling did not sell the copyright for Harry Potter to Warner Bros. She sold the film rights (and then also merch, theme parks, etc). WB hold the rights on the films and that depiction of Harry Potter, notwithstanding those individuals (director, screenwriter) who may have enduring personal royalty rights, plus actor's rights restricting new/reuse of their own likeness. Remember that early concepts included a pitch involving Spielberg that would have recast Hogwarts as a US-style day school with cheerleaders and magic pom-poms. That's a completely different telling of the story with substantial creative input from someone that isn't the author. Rowling is probably intractably tied up with WB now, but if the first film had flopped and not spawned the series, it's not impossible that a tv series (with a completely different treatment - e.g. the US version) or a different film version would have been licensed later on. None of that involves selling or surrendering the rights to the entire body of intellectual property (although she won't get creative control over the end work, just as Alan Moore has disowned all the film adaptations of his graphic novels).
Also, how would films or TV get made? Would every animator, cameraman, actor, sound recordist, writer, producer own a bit of the copyright for a film?
To a point. Sure, why not. Same way a studio album gets made. A dozen sets of rights - the entity paying for the studio has the mechanical rights over that specific recording, the writer and artists have their creative rights, as does the engineer/producer/mixer for their creative inputs. The comparison to a symphony orchestra in interesting - does a musician make a creative contribution in playing someone else's score? They're more of a session musician there. They're essential to the output in the same way a gaffer or focus puller is, but they're not on the level of a director or screenwriter's creative vision.
I think there's a halfway-house here in that rights for personal creators should outstrip business rights. Consider that patents only last 25 or so years. Why is copyright 70 years after the author's death? Why do Disney get to keep stuff going for the best part of a century?
As an author/lyricist/artist/whatever, copyright should last at least to your death, probably some years after (we can wrangle over 25/50/70 years). Copyright owned by a business (whether bought from a private creator or developed on an in-house work-for-hire basis) could last no longer than 25 years. If you're not making money back from an album or film in 25 years then you're not likely to! If Disney want to appropriate a public domain folktale for their next movie, why should they expect more than 25 years of protection on their retelling of that story?
This would have some very interesting outcomes. For instance, the corporate-owned mechanical rights on the entire Beatles back catalogue would be public domain by now. Of course the artists (and estates) would still own the rights over the music and lyrics1, but anyone could approach them and say "I'd like to reissue the old recordings on vinyl, I just need to license the creative rights from you". This was the difference between PPL collecting money for performers and record labels on recorded music, where PRS were collecting money for songwriters, composers and publishers for their compositions and lyrics (they've now merged into PPL-PRS).
This is akin to reprinting Adam Smith. You can get a copy of Wealth of Nations and reprint the text freely (provided you reformat it and don't infringe on editing/layout rights). Albeit for music, reissuing recordings without the masters would be challenging, which would heighten the value of that asset, without needing legal copyright. Likewise, the Louvre are the only people who can produce good quality prints of the Mona Lisa (despite artistic rights being long expired), because only they can grant access to the original for scanning or un-glassed photography. This doesn't stop anyone else taking a photo in the gallery and selling a bad print... and why should it? It somewhat strange right now that you can own the physical master tapes for a recording but not be entitled to sell copies because you don't own the corresponding copyright. The current system is not "simple"!
Knocking back corporate rights could create a slightly strange situation in which a piece of work in itself is out of copyright, but not entirely free of rights because individual rights are still at play. But this is nothing new - it's not uncommon for businesses to want to reissue classic video games (and possess the original source code), but be tied up in rights over music because they only licensed a recording for the five years the game was expected to be on the market or something. It would however encourage businesses to move along and innovate, because their rights over a film or album will expire in a couple of decades.
1. Yes yes, in that specific case there's been a 50 year fight for McCartney to get his songwriting rights back from ATV, which on the one hand makes the case that it's useful to be able to sell off the whole lot because he probably did well out of it, but also makes the case that some artistic rights should be intrinsic, and the artist should just be able to license out use of their creation. People claim this is unworkable. It's not - it's just different. Studios and record labels want you to believe it's impossible because they've spent 100 years writing the contracts and building the legal frameworks to suit themselves. There's no reason why the system can't change. This is why Tidal exists - because there's no money in streaming for artists (unless they're Taylor Swift and get to set their own terms). It all gets slurped out by the labels one way or another.
"The entire notion of copyright needs a massive overhaul to enter the digital age we are living in."
What does the digital age have to do with it? Just becuase the internet has made it easier to do illegal things isn't a reason to change the law to make those things legal. The internet has made it easier for thieves to empty people's bank accounts but I bet you don't believe that laws need overhauling to recognize the digital age we're living in and make push payment fraud legal. The only reason I can think of that people are railing against copyright laws is the emergent view that "everything on the internet should be free".
"but I bet you don't believe that laws need overhauling to recognize the digital age we're living in"
Just to throw out a couple of random thoughts - why to we communicate with friends and family using ten or eleven digit numbers, yet a mere four is considered sufficient to protect our payments? Should a bank not be considered liable if it accepts card payments that happen in close proximity in two geographically distant places?
Maybe the current laws do need a tweak for digital age.
One problem is that the "digital age" has already seen some rather extensive updating of IP law, and much of that is a mess. Anyone who's ever had to argue DMCA exemptions in front of the Librarian of Congress — and I have a friend who has done that — knows that the current state of the law is bad in both senses: unfit for purpose, and counter-productive.
Now, if you were to argue that we should just roll back the DMCA and similar laws entirely, and return to the state of IP law just after Sony v. Universal, well, that I'd entertain.
What does the digital age have to do with it? Just becuase the internet has made it easier to do illegal things isn't a reason to change the law to make those things legal.
This might not be legally accurate as IANAL, but it seem to me that if they had operated as a physical lending library, they wouldn't have been liable? So the issue is that they have delivered the book digitally to users, rather than physically. That's what makes it a "digital age" issue. There is a physical book, and only one person can view it at a time, but the way they view it now is by looking at a digitized replica.
Its fair use to digitize books you own, and read the digitized replica, but its not fair use to lend the digitized replica?
The aim of the IA presumably is not copyright infringement, but preserving knowledge. I would disagree with you in this instance and say that a law change may be beneficial. IA are doing something that many physical libraries do - I can rent ebooks for free from my local library from anywhere, through the libby app - so the reform would be to legislate what libraries can do, what their obligations are, and so on. If it is legal for libraries to do it, it should be legal for other entities to do it as long as they follow all the rules that libraries have to follow.
When you borrow from a library (in the UK - can't speak for other countries) the author gets paid - first when the library buys the book and subsequently a small amount (about 10p) every time it's borrowed, up to a max of 6k per year. So, as long as IA paid for their copy of the book and they are paying the author every time its lent then they would be acting as a library.
I don't think that in the UK it's strictly legal to digitize whole books. This page
https://www.gov.uk/guidance/exceptions-to-copyright
certainly doesn't say it's legal to digitize books in their entirety so you can read them on a reader. Even if it were legal under a sort of fair use ("fair dealing" in the UK), digitizing whole books and putting the files up on a website and allowing unilimited downloads without the copyright holders' permission would certainly not be.
There's a significant set of challenges to this that would need to be ironed out, but I've often thought a complete ban on corporate ownership of intellectual property would be the best way forward. Extremely expensive to implement and very difficult to make it work, and you'd have to stop agreements where unknow bands go into the studio and their manager owns all their intellectual property, but in theory a very good idea.
If it's good for copyright (i.e. the value vested in creative/artistic works) then why isn't it good for all forms of value? Should you only be able to sell stuff to people: your labour, your house, your car, etc. It's a serious question - why do you consider the value vested in copyright different from any other forms of value? I sell my labour as an engineer to a company, I sold my last car to a company, I recently sold a couple of watches to a company.Why shouldn't I sell the copyright in my songs to a company?
I don't think that's the part they disagreed with. I think they, and I, disagree with the part "in theory a very good idea."
The problem is that there are lots of cases where a company owning some intellectual property is the most logical and only workable solution. If a company hires me to write some code, it isn't very workable for me to own the copyright to the code I wrote for them. It doesn't work for them: how can they sell a product based on the code they paid for when it's split up among anyone who ever touched it? How can they prevent someone else from doing the same? Could their competitor find each of the coders, pay them a small amount, and get legal copies of the same thing the company already paid for? It also doesn't work for me. In almost all cases, I'm going to write my code along with some other people, not all of whom might be there anymore. Can I use and modify the work of someone who no longer works there if they still own the copyright to that part? Do we need to track them, or their next of kin, down and ask for permission for me to view it? I think that, in that example, the company owning the work they paid me to make makes a lot of sense and is a perfect parallel to similar jobs; if I make a physical object at my employer's request, my employer owns the object.
So if a company can own something when they've paid me to make it, it also makes sense that they can buy it from me. To use another coding example, let's say I wrote some code on my own. I've been selling licenses, but there is a company that would like to use it. I no longer want to support it, keep updating it, dealing with licensing discussions. I could try to give them a generous, perpetual license then just stop, but then what if someone else wants it? They could try to track me down and get a license, but I might not be easy to find. I could sell the code outright to the company and allow them to issue licenses, and they could pay me more for the extra power than they would have for the more limited license. I've been part of this from both sides. I've had code I didn't want to sell anymore. Often, I did the easy thing and either open sourced it or just stopped acknowledging that it ever existed, essentially giving up on ever getting more money from it, but if I had a buyer, I'd happily have sold it to them. I've also tried and failed to track down a copyright holder for some code that I would have wanted to buy a license for, but because the person who originally worked on it got bored, you just couldn't because the holder was uncontactable and for the most part unidentifiable.
Both my examples are about code, but similar conditions apply for most types of copyrightable work.
"but things like Disney should no longer happen"
First up, I pretty much agree with you, and I don't have a solution either.
However, I think the logic that a company would use is that they took this idea, this creation, and invested time and money in developing it into a "thing" which then became a marketable commodity.
Consider, for instance, Harry Potter. The creation of one woman. Which now has a bunch of films, spin off films, and vast amounts of tat (figurines, tea cosies, blah blah blah blah). So it's a little more complex than "the copyright ends with the creator".
All that being said, the only two words that I can think of for that damned mouse is "culturally abusive".
"It's not different than a library buying a book to lend it out, they just lent it digitally instead."
If you have a physical book you can only lend it out to one person at a time. From 2020, the IA were lending out multiple digital copies for each physical copy they held.
It is not the same.
From the article:
"The San Francisco-based Internet Archive has been scanning printed books and distributing them online – without the consent of copyright holders – through a process called Controlled Digital Lending (CDL). The idea is that the Internet Archive can lend readers one digital copy as a proxy for each physical book in its control without violating the law.
That idea has been rejected by US courts, first by Judge John Koeltl from the Southern District of New York in March 2023, and now by Second Circuit Judges Steven J. Menashi, Beth Robinson, and Maria Araújo Kahn."
They were lending one digital copy per physical copy owned and sued for that.
That was the original idea. It is also the idea they were using most recently. It was not the idea they tried to use in the middle. In 2020, right before this court case was filed, they established what they called the "Temporary National Emergency Library". That was a program of letting anyone get a copy of any copyrighted work they held, no matter how many physical copies they had. They kept this up for three months, only stopping it when they were sued (this particular lawsuit).
Their reasoning was logical: in a pandemic, it is harder to go to a library with paper books and some had closed or put restrictions on who could get books. Libraries relaxed that pretty quickly around where I live when they determined that COVID was not going to survive long on a book, but for the first few weeks, that was indeed a problem. However, just because it helps someone doesn't make it automatically legal, and the Archive should have known that. I am convinced that, without this, they might not have been sued at all and they might have had a much easier time of it if they were.
In the Controlled Digital Lending scheme, a digital copy is produced from a physical one without authorization of the rightsholder, and then that digital copy is treated as a stand-in for the original for lending purposes. Hachette et al. aim to quash the theory that digitization is a right held by owners of physical copies of books.
I suspect that Hachette et al. would also aim to quash the theory that owners of physical copies of books have the right to read them if they somehow manage to arbitrarily encode a copy of the information into the meat of their brains.
You wouldn't steal a car.
You wouldn't steal a handbag.
You wouldn't steal a comfy chair.
You wouldn't steal a book.
Remembering copyrighted works is stealing.
Stealing is against the law.
Reading. It's a crime.
Read the quote:
"The idea is that the Internet Archive can lend readers one digital copy as a proxy for each physical book in its control without violating the law.
That idea has been rejected by US courts, first by Judge John Koeltl from the Southern District of New York in March 2023, and now by Second Circuit Judges Steven J. Menashi, Beth Robinson, and Maria Araújo Kahn."
Assuming that quote is accurate, it still stands that the 1:1 lending was found illegal, which is the point "basicreality" was making. It's irrelevant if a 1:many is what kicked the court case off.
I'm tempted to say "read the thread". The original post described that the IA had lent out multiple copies:
"If you have a physical book you can only lend it out to one person at a time. From 2020, the IA were lending out multiple digital copies for each physical copy they held."
The second post suggested that this was not the case:
"They were lending one digital copy per physical copy owned and sued for that."
I replied to clarify that, yes, the court did decide that 1:1 was also not allowed, but that the suit was during, and at least partially because of, the 1:many. I.E. the first poster was correct and the second poster was not.
The IA has been doing CDL since 2011 and has been calling it CDL since 2018. I'm not sure it's ever been clear whether that's allowed or not under copyright law, but it is so close to the line that it could have been ruled legal. If I got to write copyright law, CDL, with some extra provisos around the "controlled" would be legal. Their attempt to do a 1:many arrangement was very relevant to every aspect of this. It certainly led to this lawsuit which has now ruled against CDL as well. It probably helped make the case against CDL. It may have done significant damage to the Internet Archive. It probably has harmed the IA's image and its ability to influence copyright standards, which is quite important as the IA has been one of the organizations that has helped improve the status of the DMCA, something that is probably less likely to succeed now.
The article left out the part where during the pandemic, the Internet Archive lifted the "one borrower at a time per physical copy" policy. They were indeed lending out digital copies on a many-to-one basis, and though the lawsuit concluded they can't even do one-to-one in the manner they had been, the lawsuit may never have been filed if the IA hadn't pulled that stunt in 2020 and riled up the publishers further.
"the lawsuit may never have been filed if the IA hadn't pulled that stunt in 2020 and riled up the publishers further"
Unfortunately, that decision was like a red rag to a bull and the publishers appeared to have conveniently looked the other way when it was only one on one lending. Sadly, there's now no way of going back to that previous situation.
Perhaps a middle ground of x years/death of the author, whichever is the longer?
That is how the law works in some cases. I remember Cliff Richard complaining that his first records were about to go out of copyright, and yet he was still alive. I've now lost track of how long it goes - because it's different for music and books in the UK. And also, I think, different for the writers of a song and the performance rights for a song.
It seems a bit harsh that a creator should lose control of something they did while they're alive. So maybe a 50 year limit (extended for the life of an author)?
Most authors/musicians etc. sell the rights to a corporation in order to monetize their IP. If they die the day after signing the contract the corporation would be fucked. So they aren't ever going to sign.
It wouldn't be impossible to phrase the law to honour existing licenses (to a point). So an creator dies and their work becomes public domain immediately (or after 20 years, something less than the current 70), but extant contracts/licenses get a grace period. It's different to the current system but perfectly workable.
Or studios just have to implement some new boilerplate which says "we're signing a 20 year license. If you die in 15 years, we get 25% back, if you die tomorrow we get it all back". You get the money up front and can life off the investment income, but don't go and buy a yacht.
Studios option lots of books and then never get around to ever making the film. Harry Potter was optioned by Chris Columbus the week after preprints went to producers (even before publication). The initial print run was only a few hundred copies - Bloomsbury weren't investing heavily in print or marketing. There was no indication it was going anywhere, they just had a feeling it was worth optioning.
It's not beyond the wit of man to say they need to use-it-or-lose-it if they want to tie up the rights for a longer period.
this is how copyright works, at least in the EU and a bunch of other countries, i.e. copyright protection extends to 70 years AFTER author's death. It doesn't mean they get pay that long ;) but it means that nobody's supposed to 'profit' (in theory) until after 70 years' after they die. Interesting though, who profits inside that 70 year period, I dunno, I vaguely remember there are some rules related to property, i.e. nearest family, etc.
But you do expect to be paid for the work you do today.
The author doesn't get paid until their book is sold, so if they die on the release date... they never got any payment for their work. I have no issue with that revenue being passed on, but the duration for which copyright exists is perverse.
Bollocks. Almost all authors get an advance on future earnings, well before publication.
SundogUK,
Depends on the sector and the author - and if we're talking other content creators depends even more.
Unless you're very popular (and so publishers are competing for you) - your advance might not be a large percentage of your final earnings from a work. However, they're quite important - as you need to eat while you're writing the book - writing/recording the album. A book often takes a year - an album is usually a few months. Which is all fine, royalties to follow - except of course if you've had an advance you don't then get any royalties until your advance has been paid off. Also - if you take a while to get another commission - then no advance to live on - hence you are back to the problem of having to eat. As a content creator builds a portfolio of work, then they may have more work that's now earning, so a regular income from it - and also more reputation so more commissioned work, so advances to allow them to work.
What people seem to forget is that most content-creators are not rich. Sure you get your very rich JK Rowlings or Rolling Stones - but there are loads of bands and authors who are working for not much more than minium wage - but at least get to do something they love. This is also true for lots of professional actors, artists and performers. Having a system that allows them to make a living, while doing what they love and get paid for it - enriches their lives - but also enriches society with their work. Most of them would do it anyway, for the love of the work, but would also have to have day jobs - so society would get less of their stuff - and it would probably be of worse quality.
So a lot of the supposed harms of copyright aren't really harms at all. Because if copyright didn't exist, a lot of that copyrighted material would never have been made, because the creators could never have found the time and resources to make it. So without copyright the stuff wouldn't exist that people seem to want to use for free.
"So a lot of the supposed harms of copyright aren't really harms at all. Because if copyright didn't exist, a lot of that copyrighted material would never have been made, because the creators could never have found the time and resources to make it. So without copyright the stuff wouldn't exist that people seem to want to use for free."
I have no issue with copyright in general, but it's duration is longer than necessary - and of course makes no sense when companies own copyright... what does death + 50/70 years mean for a company?
In the US, where most of the copyright restrictions happen, the company just gets a time period. Currently, that time period is 95 years, which was repeatedly extended on Disney's request. What that time period should be is certainly something we should debate, and I think 95 years is too long. However, there's no ambiguity involved.
"Bollocks. Almost all authors get an advance on future earnings, well before publication."
Are you saying that as an author, or from popular depictions elsewhere.
You might also be completely missing the point... If I give you a £500 advance on this year's wages, then you work for a year and just before I'd pay you for your work you die... do you think it's right that that payment isn't made to your estate?
If I am an artist and paint something the day before I die, my family, or whoever I intended my property to go to, gets the painting and can sell it.
If I am a carpenter and make something the day before I die, my family gets that thing and can sell it.
If I am a businessperson and complete a task and get paid a big bonus right before I die, my family gets the money and can spend it.
If I am a celebrity and am paid to endorse things, and I endorse something the day before I die, my family gets that money and can spend it.
If I'm a programmer and have been employed to write something before I die, my family gets the money that I have saved from that labor and can spend it.
But if I'm an author, programmer, composer, etc and write something the day before I die, my family should get nothing?
Why should the family benefit from something they didn't earn themselves?
That is the entire basis for the family arrangement. It is an economic system for sharing the resources possessed and accrued by individual members. Perhaps you are familiar with the concept of non-paid spouses and partners? Of children?
Really, that's just an astonishingly broken argument.
Perhaps you are familiar with the concept of non-paid spouses and partners? Of children?
I think they're only familiar with the modern peak capitalism model where two adults working full time can just about afford to rent a flat from someone who was fortunate to be born 30 years earlier when property was massively cheaper both in absolute terms and relative to normal earnings (but nonetheless counts themself as "working bloody hard for what they've earned". Which is fair, avoiding calls to fix the dodgy boiler or fix the black mold is a full time endeavour!)
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So, if an author dies the day after writing his book, his family should starve? Is that how you want it to work?
Strawman. Is the entire family (including adult children?) dependent on royalty income? No pension, savings or investment income? Outside of oddities like Stieg Larsson - who delivered the Millennium trilogy to his publisher and then died without seeing any of them published - this is not particularly common. But yes, you would not wish his estate to be deprived of the substantial income that his IP generated in books and film sales (although there's a rather sad story there about him not having a will, and the estate falling back to his estranged parents rather than his long-term but unmarried partner).
But what of a factory worker who dies? Their income stops the day they die - their family should starve?
I'd be in favour of copyright being passable to a spouse/civil partner (in the same way such a partner pays no inheritence tax), but not perhaps arbitrarily to children. You'd need some sort of "Larsson clause" to cover wills and unmarried partners. Or limited back to 50 years rather than 70. It's notable that intellectual property is subject to inheritence tax, though valuation of intangible assets is always fraught with difficulty!
"But what of a factory worker who dies? Their income stops the day they die - their family should starve?"
But so does their work.
No - in civilised society noone should be starving.
The difference is that a factory worker gets paid per hour that they are at the factory.
If they die on the 30th of the month, then I expect their paycheck on the 31st to be made out to their estate.
If however they did a year's work making a machine that was 10% more efficient, and had been promised 10% of the resultant savings for the life of that machine... then *that* payment should still be made to their estate.
Some of the other commenters appear to believe that this court case is wholly or largely about 'Big publishers' acting against the public interest, or about attempting to extend/maintain copyright well after the author's death. What the Internet Archive did was lend far more copies of in-copyright books (including of living authors) than they had in their physical archives. The Internet Archive's argument at the time was that, because of Covid, people could not travel to their local library to borrow a physical copy, but this was a weak argument even then since many of the books made available would not have been present in those libraries - even the largest of libraries do not have 'everything', and the vast majority of libraries have only a very small selection of the books that are currently in print and/or in copyright.
I am a publishing author, and was angered by the Internet Archive's actions because they assumed ownership over the work of people like me. Margins are usually small in publishing. There are certainly situations in which publishers abuse their power to maximise profit, squeezing money out of readers while not adequately compensating authors for their work (I am especially thinking here of the pay walls in academic publishing, where someone may be charged 25 pounds or more for access to an article whilst the author gets nothing). On the whole, though, publishers and authors are in a mutually dependent relationship which the Internet Archive sabotaged by blocking both parties from making any money.
Yes, I believe the Internet Archive is extremely useful and important. It preserves information that used to be publicly available by archiving the web, and allows users to download books that are otherwise very hard to find or obtain. But this does not mean that what they did when they severed the link between the number of physical copies of in-copyright books in their collection and the number of copies which they made available to users was justified.
Yes, that's fine. But the decision here applies to the one-digital-copy-per-one-hard-copy program as well; IA have already agreed to a proposed settlement for the copyright violations (per the article); and now they're trying to establish a legal right to restore the paired-copy system.
Your feelings, frankly, are irrelevant to the question of whether the publishers should agree to license IA to resume the paired-copy lending, or some other mutually-agreeable scheme, which is what IA is currently asking with the petition. The petition is addressed to the publishers, and that is what it requests.
Personally, I'd like to see USC Title 17 amended to expressly permit paired-copy schemes like the one IA was using aside from the "Emergency" one they (unwisely, and in my opinion unnecessarily) tried during lockdown. I've never borrowed an ebook from IA, and I have no need to do so; I have discretionary income for purchasing books, and I have a public library. But IA is important and while there should be some consequence for breaking the law — and indeed there already has been — it needs to be proportionate and not excessively damaging.
(And JFTR, I am also a published author, in my own small way, as are a number of my relatives and friends, and I have other IP. And I support authors in general, and several of them specifically, beyond simply purchasing their work.)
"Your feelings, frankly, are irrelevant to the question of whether the publishers should agree to license IA to resume the paired-copy lending, or some other mutually-agreeable scheme, which is what IA is currently asking with the petition."
I'm not sure they are as irrelevant as you say. As an author, their opinion might not matter very much given how many authors there are, but if enough authors disapprove of whatever arrangement comes along, they can push back on it. If, for example, authors decided that publishers were wrong and CDL is great, they could refuse to work with the publishers in this case whenever possible. That seems unlikely, both that they would take that opinion and that enough of them would put that opinion above their commercial interests, but it is possible.
Almost all of this is related to feelings of some sort. A petition similarly has no legal weight, but it's designed to indicate to the publishers the feelings of those who benefited from the IA's programs. Copyright law is unlikely to change, but if it does, it will be the feelings of creators and consumers of copyrighted work that accomplish the change. A lot of those feelings will be attached to money, but people don't argue for a law by saying "I want more money" or "I want this book for free". They tell a story about what those things would do for them in order to sway feelings in their direction.
"But the decision here applies to the one-digital-copy-per-one-hard-copy program as well; IA have already agreed to a proposed settlement for the copyright violations (per the article); and now they're trying to establish a legal right to restore the paired-copy system."
Yes, I see your point about how this court case has become one about the original lending programme which the Internet Archive set up, too. I think, though, they would not have ended up in this legal quagmire if they hadn't so openly decided to flout copyright law by lending out far more digital copies of the copyrighted books in their physical archive than they had in physical form. To put it differently, they created a situation in which a clash with publishers and living authors became virtually inevitable. And as a response to some of the other posts in this thread I think my post still stands.
Oh, books have been printed with boilerplate disclaimers (“nobody is allowed to scan this work and store it within a digital distribution system without the publisher’s permission,” yada yada) for decades now.
Sadly, I am a book-hoarder. Have been for decades now. I *love* the Gutenberg library for two reasons, one it’s all there and it’s all free, and two it’s all freely available! I don’t need to load up my hard drive, I can access anything in there whenever I want.
I enjoyed the archive collection while it was available but they were breaking the terms of the book. Sigh.
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Why did the Internet Archive locate itself in the US, a country that is obsessive about going after copyright infringement and has some of the most powerful corporations in the world who will come after you? Why not choose a location where the American corporations have less influence and copyright isn't enforced nearly as much?
Their arrogant stance on Archive.org pisses me off. They are allowed to scrape and save whatever sites they want from the Internet, but users are not allowed to download content from Archive.org? F*** off, twats! I add them to robots.txt every site I build, fecking hypocrites.
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